Dr. Gary Michelson, Forbes Billionaire, Found Animals Foundation, 20 Million Minds, Medtronic. Dr. Gary Michelson biography, history in Los Angeles, California, wife Alya. Public documents, legal documents, information about public figure Gary Michelson. This information and data is in the public interest. I worked for Gary Michelson. Everything is the truth to the best of my knowledge or personal opinion and belief. Infuse lawsuit.

Justice Richard Mosk died of pancreatic cancer at home in hospice care. I think this was the last case he heard in oral argument November 16, 2015. He requested a letter brief on some issues December 11 due December 18, 2015. He became ill December 2015 per his family. It must have been after December 18, 2015. January 22, 2016 they vacated submission as Mosk took medical leave. March 18, 2016 he sent his retirement letter to the Governor. He retired effective March 31, 2016 and died April 17, 2016. If only he'd not gotten sick he could have at least been a dissent on this case. Instead Supreme Court Justice appointed her friend to Mosk's position to roll with the flow. Appellants still would have lost two to one so it doesn't really matter.

Here is his last oral argument in this case. These are a few audio snippets. Justice Richard Mosk was shocked and upset that the state claimed Appellants defrauded Dr Gary Michelson out of money. The state never knew what Appellants paid for the property. They didn't know if they lost or made money yet they claimed Gary lost money. Evidence in the case proved that Gary Michelson made millions in the deals. He sold off only part of the property for $32,000,000. Appellants even offered to buy all the property back for what he paid for it. Gary refused saying the land was worth a lot more than what he paid. Then there was no fraud!

You can hear Justice Richard Mosk get mad at the state for their ridiculous non-existent argument. I'm sure Mosk knew this was a vengeance lawsuit against one of Gary's ex-friends. No money was ever lost. Millions were made. Gary just got sad and mad that his friend didn't want to be his friend anymore. This is the third time Gary has filed false criminal charges against ex-friends that I know of. No one should ever be friends with or do business with Gary Michelson for this reason. Gary then used his money to buy ex-DA Steve Cooley and current DA. Gary even admitted in trial that he took the DA's office out to lunch to thank them for filing this case against his ex-friend. It doesn't get more corrupt than when they brag about how corrupt they are in court.

Saturday, April 9, 2016

Below are snippets from the 29 minute oral argument in case B261156. Justice Richard Mosk, Justice Paul Turner, Justice Sandy Kriegler were at the oral argument. I'll try to name the speakers. Suffice it to say Justice Richard Mosk appeared to be of the opinion that if you don't know how much Appellants paid for the property before Gary Michelson bought it, how can one tell if Gary made or lost money?

Justice Richard Mosk as all know requested "medical leave" after oral argument. Chief of the Supreme Court Justice Tani G. Cantil-Sakauy then appointed her long time friend pro tem Judge Sanjay Kumar to the position to sit until April 11, 2016. This means Justice Cantil knew the opinion would be released April 8, 2016 a Friday. Days before the opinion was to be released March 31, 2016 Justice Richard Mosk decided to retire. That was a good move on his part so his name won't be associated with this incredibly unjust ruling. This ruling shows the extreme corruption in our judicial system. No money was lost or stolen. Powers made Gary Michelson millions of dollar. I wish Powers could "defraud" me so I could also make millions of dollars.

If you listen to these audio snippets, you can see that Justice Richard Mosk is frustrated and upset with this ridiculous, frivolous case. No money was lost. Millions in profits were made. There was no written or oral contract as to commission. You can also hear the Deputy AG act like a deer in headlights. He has no case and he knows it. It's obviously tough for him make up stories and fake arguments on the spot.

2. AG continues to stumble on a simple question
RM: Do you have any evidence for the price for the land as it pertains to this one count?

AG: You mean in terms of receipts?

RM: (do you have) any evidence at all? Is there any evidence in the record as to what defendant Powers paid for the land down in Costa Rica?

AG: Uh, the position we take is Dr Michelson said this is how much he was asked for and this is how much he sent and I think that is evidence of the amount paid for the property

RM: Say that again, a little louder.

AG: Sorry your honor. Dr Michelson is the one who came up with these figures who testified to these figures . I was asked for this amount. I sent $150K right away and then ...

RM: That's not the question. The question is how much did Powers pay for the property. Is there any evidence to that? I could find not.

AG: I'm not understanding your question, your honor. Please repeat.

RM: It's the same question Justice Steilger (sp?)asked. How much did Powers pay for the property for which Dr Michelson paid $759K? Is there any evidence as to how much the property was actually purchased not by Michelson but by Powers?

AG: I can't represent any particular number on that for what I remember about the case (AG was not at the trial)

Justice Richard Mosk: "The question was under count three what evidence was presented that he was being defrauded? I thought it had to do with they were only to get 6% but they were actually buying this property much cheaper and reselling it to me so they were getting more than 6%. Wasn't that the theory?"

DAG Voet: "Uh, that may have been the prosecution theory but I would submit that you have to look at the this case much more broadly not just that single transaction. In the sense that would Dr Michleson have continued to have done this had he known about everything that was going on, that these two people who posed as friends were trying to trick him. I think because of that he would have said 'I'm not sending you any more money. Why would I send you any more money because your intent is to defraud me."

Under this premise Gary Michelson believes that if he does business with someone and they make one penny profit, they have tricked and defrauded him.

4. AG, where's the evidence
RM: If we don't know what they paid for it, how do we know where the trick was here?

AG: The trick was uh, mm, they engaged in this comprehensive scheme to defraud Dr Michelson

RM: Well, you can keep saying that over and over again. I'm asking what was the evidence and the theory of the prosecutor? Just to say there was a scheme, there was a trick or device, tell me how, what, exactly what, where's the evidence .

AG: Well, here's some evidence. Powers, you know, kept these properties in his own entity and in fact refused to do anything to them until he extorted Dr Michelson to purchase them back

RM: I don't follow that. That doesn't even answer, that doesn't even get close to answering my quetion

AG: Okay, well Dr Michelson never would have sent that money had he known about everything that was going on. I think, I don't want to over simplify it

Other Judge: Whichever your position is, misrepresentation was made concerning, with the land, with the usable floor, and it turns out that the land could not be used for which the purpose for which it was (Justice feeding argument on behalf of AG)

AG: Not fully used. Some of the property even though it wasn't really suitable for an investment, might have had some trees on it

Other Judge: The entirety of the property, was not suit.., you couldn't grow teak on all of it. Is that correct?

AG: or there was no teak already there.

RM: It sold for $32 million.

AG: Loss is not the issue (If loss is not the issue, then there is no dollar loss. Must be misdemeanor)

RM: I understand but it wasn't like it was swamp land. There must have been some value to it.

Friday, April 8, 2016

The lower court judgment was affirmed unanimously. Dr Gary Michelson and his piles of money were able to buy favors from his DA buddies to harm his ex friends just because one didn't want to be his friend any more. This is what money can do. The Appeals Courts are ruled by big business and big money. There was no way two poor out of state individuals stood a chance even with the most brilliant, experienced and fantastic attorney. I knew this would happen but didn't want to kill anyone's hope. Justice Sandy Kriegler wrote the opinion. He carries the weight of the opinion. The other two concurred.

I just realized that Justice Sanjay Kumar was brought in just to hear this one case. Justice Kumar was appointed for this case and up to April 11, 2016 which is Monday, i.e. "Judge Sanjay T. Kumar of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until April 11, 2016." This case is over Monday morning. That means the opinion was probably written a while back and they decided to release it late Friday.

Justices pro tem are appointed by the Chief Supreme Court Justice, "When there are vacancies on the Court of Appeal, the Chief Justice of the Supreme Court temporarily assigns a judge from the superior court to sit as a Court of Appeal justice." This means Chief Supreme Court Justice Tani appointed Kumar. Kumar will do as the Supreme Court instructs him. I think this was intentional judge change situation. One Justice didn't want to ruin his reputation, bend to the will of his boss, i.e. money, power of Gary Michelson over ex-DA Steve Cooley. Another Judge was willing to do as he was told so he can hopefully be appointed, elected (?) Appeals Court Judge. Here's a great article on "gaming the system" with "visiting judges." "Judge," "Justice" doesn't make a difference It's people with power and corrupt influence abusing the system for personal gain and evil agendas.

In this case which is State v two individuals, having the State Supreme Court Justice appoint her personal friend Justice is conflict of interest. Of course she chose Kumar who will do as she tells him. Our judicial system is so effed up. Richard and Neil had the most wonderful attorney any person could have, law and evidence were in their favor and they still lost.

Here's the proof of the relationship. Ex DA Steve Cooley good buds with Chief Supreme Court Justice who is good buds with Kumar. Notice she'd appointed him to fill vacancies in the Appeals court for 16/24 months. That's quite a few cases to throw here and there. I will bet that Kumar voted pro DA, State, friend of someone wealthy and powerful every time. Steve Cooley also endorsed Judge Kumar.

Notice Richard Mosk in oral argument basically stated there is no case because there is no evidence of any crime. If the state didn't know how much Richard and Neil paid for a property, they could never tell if they made a profit or lost money. As I remember from part of the trial they did lose money at times. It's shocking that the opinion states that it doesn't matter if any money was made or lost.

I believe Justice Richard Mosk didn't want to go along with the corruption in this case. He took a medical leave to get off the case. The state who was the prosecutor in the case selected Kumar to sit the rest of the case. Conflict of interest much? Of course Kumar will agree with other Justices because he so very much wants to be a Justice instead of just a Judge. New Justices always just concur their first year at least. Justice Richard Mosk finally retired I feel because he was sick of the corruption. He was probably tired of being told to go along with the corruption as a favor to Gary's money bought political friends. Mosk was nearing retirement anyway. They let him retire before they released the opinion. The timing is just too coincidental.

I just fully read the opinion. There is no justice. It reminds me of my appeal. The Justices' arguments, evidence make no sense. It goes completely against the law, evidence, case citations, common sense...

Notice it's "unpublished." That means it can never be used as a case citation in other cases.

Filed
4/8/16 P. v. Powers CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND
APPELLATE DISTRICT

DIVISION
FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

PHILLIP RICHARD POWERS et al.,

Defendants and Appellants.

B261156

(Los Angeles County

Super. Ct. No. BA409225)

APPEAL from
the judgments of the Superior Court of Los Angeles County, Craig Richman,
Judge. Affirmed.

Defendant Neil David Campbell introduced his friend,
wealthy doctor Gary Michelson, to defendant Phillip Richard Powers. The three men established a business
relationship in 2000 in which Powers secured investment property in Costa Rica
for Michelson, for the ostensible purpose of growing and harvesting teak. The relationship unraveled after several
years, with Michelson alleging that Campbell and Powers operated a scheme
designed to entice him into purchasing unsuitable land at inflated prices,
while secretly overcharging Michelson on the land and siphoning off millions of
dollars for their own self-interest.

The district
attorney filed a felony complaint charging 140 counts against defendants, which
was reduced to five counts by the time of trial. The jury returned one guilty verdict, of
grand theft in count 46 (which was referred to at trial as count 3), in
violation of Penal Code section 487, subdivision (a).[1]
The jury made a special finding that the
charge in count 46 was filed within the statute of limitations, but the
excessive taking allegations under sections 186.11, subdivision (a)(2) and
12022.6, subdivision (a)(4), were not true.
The jury found defendants not guilty of grand theft in the four
remaining counts.

Probation
was denied as to both defendants. Powers
was sentenced to three years in county jail pursuant to section 1170,
subdivision (h), on condition he serve 217 days in county jail with 888 days
suspended. Campbell was sentenced to two
years in county jail. Defendants filed
timely notices of appeal.

Jointly represented by one
attorney on appeal, defendants raise the following issues: (1) thereis insufficientevidencetosupport the conviction of grand theft in count46; (2) thereis overwhelmingevidencethatcount 46is
barredbythestatuteoflimitations; (3) the trial court erred in failing to instruct the
jury that the prosecution withheld evidence; (4) section 1157 requires the
convictions in count 46 be reduced to misdemeanors; (5) pursuant to Proposition
47, the count 46 convictions must be reduced to misdemeanors; and (6) if the
convictions are reduced to misdemeanors, the convictions are barred by the one-year
statute of limitations.

DISCUSSION

Sufficiency of the
Evidence

Defendants
first contend the evidence is insufficient to support the conviction in count
46. Defendants reason that the evidence
is constitutionally inadequate because: (1) the prosecution presented inconsistent
evidence that Michelson sent $759,600 to Costa Rica to pay for properties
obtained by defendants; (2) Michelson testified that he actually received each
of the properties in count 46 so there could not have been a theft of $759,600;
(3) the prosecution theory that defendants inflated the price of the property before selling it is incorrect
because “Michelson himself testified on cross-examination that he did not know
how much of the $759,600 was stolen” and “Michelson knew that Powers was taking
a commission for his services of acquiring the property, and also knew that
Powers was buying the property, marking it up, and selling it;” (4) a professional
services agreement between Powers and Michelson did not limit the amount of
commission Powers was to earn from each sale, and although Michelson testified
that Powers was limited to taking no more than 6 percent, the prosecution
presented no document memorializing a 6 percent limit on commission.

We reject
the challenge to the sufficiency of the evidence. The inadequate statement of facts presented
by defendants in their briefing forfeits the issue on appeal.

Standard of Review and the
Requirement of a Complete Statement of Facts

“In
addressing a challenge to the sufficiency of the evidence supporting a
conviction, the reviewing court must examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial
evidence—evidence that is reasonable, credible and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. (People v. Johnson (1980)
26 Cal.3d 557, 578.) The appellate court
presumes in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence. (People
v. Reilly (1970) 3 Cal.3d 421, 425; accord, People v. Pensinger (1991)
52 Cal.3d 1210, 1237.) The same standard
applies when the conviction rests primarily on circumstantial evidence. (People v. Perez (1992) 2 Cal.4th
1117, 1124.) Although it is the jury’s
duty to acquit a defendant if it finds the circumstantial evidence susceptible
of two reasonable interpretations, one of which suggests guilt and the other
innocence, it is the jury, not the appellate court that must be convinced of
the defendant’s guilt beyond a reasonable doubt. (Ibid.)” (People
v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)

“Thus, to
prevail on a sufficiency of the evidence argument, the defendant must present
his case to us consistently with the substantial evidence standard of
review. That is, the defendant must set
forth in his opening brief all of the material evidence on the disputed
elements of the crime in the light most favorable to the People, and then must
persuade us that evidence cannot reasonably support the jury’s verdict. (See People v. Dougherty (1982) 138
Cal.App.3d 278, 282.) If the defendant
fails to present us with all the relevant evidence, or fails to present that
evidence in the light most favorable to the People, then he cannot carry his
burden of showing the evidence was insufficient because support for the jury’s
verdict may lie in the evidence he ignores.”
(People v. Sanghera (2006) 139
Cal.App.4th 1567, 1574.)

The record in this case includes eight volumes of
reporter’s transcripts, five of which contain trial testimony. Fifteen witnesses testified for the
prosecution and two for defendants.
Approximately 150 exhibits were received at trial.

The statement of facts in
defendants’ opening brief mentions the name of one witness—alleged victim Gary
Michelson—and cites to eight exhibits.
The first four paragraphs are devoted to trial testimony and evidence,
primarily highlighting evidence favorable to the defense. The final nine paragraphs included in the
statement of facts section of the opening brief describe the procedural history
of the case with no reference to the evidence presented at trial. Defendants’ reply brief fares no better,
again failing to address the totality of the evidence from trial in the light
most favorable to the prosecution. By
way of comparison, the statement of facts in the respondent’s brief filed by
the Attorney General is 10 pages long.

In an effort to cure the defect in
briefing so that the sufficiency of the evidence contention could be reached on
the merits, this court solicited additional briefing after oral argument to
clarify the evidence pertaining to count 46.
We specifically directed the parties to “discuss in detail whether or
not the emails that were first adduced at trial during the prosecutor’s closing
argument, which neither appellants nor respondent discussed in their respective
briefs, provide sufficient evidence to support the count 46 convictions.”

Defendants’ letter brief failed to
set forth the contents of the e-mails.
Instead, defendants argued that “it is crucial to understand the
skepticism with which this extremely prejudicial evidence must be viewed” due
to a break in the chain of custody, a meritless issue not presented on appeal
nor pertinent to this court’s request for specific briefing. Thereafter, defendants’ letter brief goes on
to describe the e-mails as “disjunctive, unclear, confusing and in no way offer
any evidence supporting the Count 46 conviction.” Defendants then discuss what the e-mails do
not establish, referring to the cost of the properties, what Michelson paid,
and the absence of e-mail reference to any property related to count 46. Thus, defendants failed to discuss the actual
contents of the e-mails in the light most favorable to the judgment.

In contrast, the Attorney General
responded to the court’s request for additional briefing with a summary of the
various e-mails she contends demonstrate defendants’ fraudulent scheme. Without conducting a comprehensive summary of
the entirety of the Attorney General’s review of the e-mails, it is sufficient
to note that the Attorney General cites to e-mails between defendants
that: suggest inflating prices of
property by millions of dollars to be sold to Michelson without telling him;
discuss destroying original documents; refer to raising the price of properties
to Michelson by 35 percent over what they paid; identify funds received from
Michelson for properties covered by the charge in count 46; set forth
defendants’ fear that Michelson would find out Campbell had been receiving more
than half of what Powers received on the property sales and they could end up
“in a lawsuit right now with [Powers’s] bank records open on his desk with
possibly both of us in jail, broke, or both”; and discuss the need to hide
“about $6M worth of profits and make it look like part of the acquisition
costs.”

Analysis

Based on
the above description of the briefing, we have no difficulty concluding
defendants have forfeited their claim of insufficiency of the evidence. At no point have defendants set forth all of
the material evidence relating to count 46 in the light most favorable to the
People. Under these circumstances,
defendants have not sustained their burden of showing the evidence was
insufficient. (People v. Sanghera, supra,
139 Cal.App.4th at p. 1574.)

Statute of Limitations

Defendants
argue that the statute of limitations under section 803, subdivision (c)(1) for
grand theft was triggered no later than March 15, 2006, based on Michelson’s
testimony that he knew “something was very wrong” when he learned for the first
time that “[Powers] was taking multiple levels of commissions.” They contend that the felony complaint filed
on March 21, 2013, was filed beyond the limitations period. Defendants also argue that the theft alleged
in count 46 was completed in 2005 , and Michelson was reasonably suspicious
throughout 2005, expressing concern about the transactions and the commissions
Powers was receiving, and asking for copies of all purchase agreements and
corresponding checks for the first time.
Citing People v. Zamora (1976)
18 Cal.3d 538, 561-562, defendants also make the argument that the statute of
limitations period began to run in 2005 when Michelson, as a reasonably prudent
person, would have been suspicious of fraud.

Standard
of Review

“When an
issue involving the statute of limitations has been tried, we review the record
to determine whether substantial evidence supports the findings of the trier of
fact. (People v. Ruiloba (2005)
131 Cal.App.4th 674, 681-682; People v. Padfield (1982) 136 Cal.App.3d
218, 226.) Statutes of limitation must
be strictly construed in favor of a defendant.
(People v. Zamora (1976) 18 Cal.3d 538, 574 (Zamora).) The statute of limitations is not an element
of the crime; although the prosecution has the burden of proving the criminal
action was commenced within the applicable limitations period, its burden of
proof is by a preponderance of the evidence.
(Id. at p. 565,
fn. 27; People v. Smith (2002) 98 Cal.App.4th 1182, 1187.)” (People
v. Castillo (2008) 168 Cal.App.4th 364, 369.)

The
four-year statute of limitations for grand theft “does not commence to run
until the discovery of the offense . . . .”
(§ 803, subd. (c)(1).) In
addition, the statute of limitations is tolled for “a maximum of three years
during which the defendant in not within the state . . . .” (Id.
at subd. (d).)

The “lack
of actual knowledge is not required to bring the ‘discovery’ provision of
[former] section 800 into play. The
crucial determination is whether law enforcement authorities or the victim had
actual notice of circumstances sufficient to make them suspicious of fraud
thereby leading them to make inquiries which might have revealed the
fraud.” (People v. Zamora, supra, 18
Cal.3d at pp. 571-572, italics omitted.)

It is settled that discovery of
loss by a victim is alone insufficient to commence the running of the
limitations period. (People v. Petronella (2013) 218
Cal.App.4th 945, 956; People v. Soni (2005) 134 Cal.App.4th 1510, 1518;
People v. Crossman (1989) 210 Cal.App.3d 476, 481.) “‘For the purposes of triggering the statute
of limitations under a similar tolling statute, a discovery was held not to
have occurred even though officials learned substantial facts which would have
only created a suspicion of wrongdoing.
(Com. v. Hawkins (1982) 294 Pa.Super 57.) Similarly, in People v. Swinney [1975]
46 Cal.App.3d 332, 337, the court concluded the triggering of a period of
limitations on concealed thefts requires more than mere discovery of a loss; it
requires an awareness the loss occurred by virtue of a criminal agency. Thus, “discovery” calls for awareness of the
crime, not merely the loss.’ (People
v. Kronemyer (1987) 189 Cal.App.3d 314, 334; italics in original.)” (People
v. Crossman, supra, at p. 481.)

Facts
Relating to the Statute of Limitations Issue

Our review
of the record reveals the following facts constituting substantial evidence to
support the jury’s finding.

Michelson’s
purchases of Costa Rican properties increased in 2005. David Cohen, Michelson’s financial advisor,
was responsible for obtaining the necessary documentation for Michelson’s tax
returns. He at first tried to rely on
documents provided by Michelson to reconcile purchases and expenses, but the
documents were not sufficient,[2]
so he turned to Powers for help. Powers
wrote to Michelson on November 29, 2005 (Exh. No. 133), with a variety of
explanations for why complete documentation was unavailable, including an
inability to make copies, family disputes among sellers, and confusing payment
schedules. He expressed a desire to
create a new system to provide “a much clearer and transparent picture of all
our transactions in the future” while assuring Michelson that “[t]he most
important thing here is to know that all these transactions over the last few
years have been done with great diligence . . . .” In 2005, Cohen told Michelson something was
very wrong. Michelson then told Powers
that Cohen thought something was wrong because they could not get the
records. Cohen and Michelson repeatedly
asked Powers for documentation at the end of 2005 through 2006. Powers
promised the documents, but they were never sufficient.
On March 15, 2006, Powers
wrote a letter to Cohen (Exh. No. 41) summarizing property purchases in 2005,
and reflecting that Powers received commissions averaging 5.6 percent but
varying substantially in percentage among the various properties. This was the first time Michelson learned
that Powers was taking multiple levels of commissions. He was concerned with what Powers was doing,
but was not suspicious. In a letter to
Michelson dated May 18, 2006 (Exh. No. 20), Powers identified additional
properties to purchase and indicated he would be requesting funds. He also wrote, “The accounting issue is
almost completed, so they tell me, and should be sent out to you next week . .
. .”

Michelson
went to Costa Rica from March 23-26, 2006, intending to hire another person,
Andres Marten, to take over his operations.
On March 24 and 25, 2006, Michelson toured the properties that had been
purchased, finding them neither lush nor densely planted with trees. Defendants assured Michelson the properties
did not look lush because it was the dry season, and that the properties were
70 percent planted with teak trees.

In 2007, Michelson filed a criminal
complaint in Costa Rica and a civil action against Powers. Before learning that Campbell had received
over $1 million from the transactions, Michelson bought out Campbell’s share of
the business for $500,000, which was more than its value.

Analysis

Substantial
evidence supports the jury’s finding that count 46 was not barred by the
statute of limitations. Contrary to
defendants’ argument, the statute of limitations period did not commence, as a
matter of law, when Michelson learned on March 15, 2006, that Powers was
collecting multiple levels of commissions.
Michelson testified he was concerned with what Powers was doing, but he
specifically testified he was not suspicious.
The jury could take into account Michelson’s testimony that Powers was
actually collecting less than the 6 percent commissions agreed to by the
parties, as evidence that a reasonably prudent person in Michelson’s position
had no reason to suspect criminal wrongdoing.
The jury could rationally conclude the concerns expressed by Michelson
were a product of communication problems dating back to 2001. Significantly, Powers continued to secure
properties for Michelson to purchase, and Powers assured Michelson in his
letter dated May 18, 2006, that the accounting issues were almost
completed.

We also reject defendants’
contention that the statute of limitations was triggered in 2005 when Michelson
knew “something was very wrong.”
Michelson explained that he told Powers that Cohen felt something was
wrong with the production of documentation.
Michelson never testified that either he, or Cohen, believed the
existence of a criminal agency was the root cause of the problem obtaining the
documents needed for tax preparation purposes.
The jury could rationally conclude that the problem presented amounted
to proof of communication issues relating to transactions in a foreign country,
rather than the existence of a criminal agency.

Viewed in the light most favorable
to the judgment, we hold that a rational trier of fact could find that
Michelson was unaware of either a loss or the existence of a criminal agency
until he personally observed the state of the purchased land on March 24 and
25, 2006, during his visit to Costa Rica.
Defendants have not established a violation of the statute of
limitations as a matter of law.

Refusal to Instruct on Withholding of Evidence by the Prosecution

Defendants
argue that the prosecution failed to turn over a computer hard drive seized
from Powers in Costa Rica, and that the trial court erred in refusing to
instruct the jury on the discovery failure pursuant to CALCRIM No. 306. Defendants argue they had specifically
requested disclosure of all evidence pursuant to the discovery provisions of
section 1054.1 prior to trial, but the hard drive was not included in the
prosecution’s discovery. Defendants
argue the discovery failure “was extremely concerning” because the prosecutor
showed the jury “extremely prejudicial emails allegedly sent between
defendants” and there was “no proper chain of custody for the computers that
were seized from Powers’s home in Costa Rica.”

Penal Code Section 1054.1 and
CALCRIM No. 306

Section 1054.1 provides in
pertinent part as follows: “The
prosecuting attorney shall disclose to the defendant or his or her attorney all
of the following materials and information, if it is in the possession of the
prosecuting attorney or if the prosecuting attorney knows it to be in the
possession of the investigating agencies:
[¶] . . . [¶] (c) All relevant
real evidence seized or obtained as a part of the investigation of the offenses
charged.” The disclosure is to be made
at least 30 days prior to trial. (§
1054.7.) Upon finding a violation of the
criminal discovery statutes, the court “may advise the jury of any failure or
refusal to disclose and of any untimely disclosure.” (§ 1054.5, subd. (b).)

CALCRIM No. 306 provides in
pertinent as follows: “Both the People
and the defense must disclose their evidence to the other side before trial,
within the time limits set by law. Failure
to follow this rule may deny the other side the chance to produce all relevant
evidence, to counter opposing evidence, or to receive a fair trial. [¶] An
attorney for the (People/defense) failed to disclose: ________ <describe evidence that was not
disclosed> [within the legal time period]. [¶] In
evaluating the weight and significance of that evidence, you may consider the
effect, if any, of that late disclosure.
[¶] [However, the fact that the
defendant’s attorney failed to disclose evidence [within the legal time period]
is not evidence that the defendant committed a crime.] [¶] <Consider
for multiple defendant cases> [¶] [You
must not consider the fact that an attorney for defendant ________ <insert
defendant’s name> failed to disclose evidence when you decide the
charges against defendant[s] ________ <insert names of other
defendant[s]>.]”

Analysis

We need not address the merits of
this contention, as defendants have failed to establish the prejudice necessary
to justify reversal of the judgment.
Defendants’ opening brief admits the hard drive was seized from Powers’s
home in Costa Rica. There is nothing in
the record to suggest the e-mails presented to the jury do not accurately
reflect what was on the hard drive.
Although defendants contend there was insufficient proof of chain of
custody of the hard drive, on appeal they make no substantive argument on this
issue supported by citation of authority.

As noted by the trial court,
defendants were aware of the existence of the hard drive and the e-mails from
the time of the preliminary hearing, and although a general discovery request
for all relevant evidence was made in a timely fashion, defendants never
expressly asked for production of the hard drive. Under the circumstances of this case, it is
not reasonably probable defendants would have received a more favorable result
had the court instructed the jury pursuant to CALCRIM No. 306. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818,
836.)

Reduction to
Misdemeanor Theft under Penal Code Section 1157

Defendants argues the information
alleged a theft in excess of $400, the jury was not instructed under current
law that a grand theft is committed by the taking in excess of $950, the jury
returned no verdict finding the amount of the loss in count 46, and pursuant to
section 1157, the verdict must be construed to be petty theft. Although defendants are correct the
information alleged only a taking in excess of $400 and the jury was not
instructed on the dollar amount required for grand theft, we conclude there is
no basis to reduce the offense to petty theft under the circumstances of this
case.

Penal Code Section 1157, Related
Statutes, and Applicable Case Law

“Whenever a defendant is convicted
of a crime or attempt to commit a crime which is distinguished into degrees,
the jury, or the court if a jury trial is waived, must find the degree of the
crime or attempted crime of which he is guilty.
Upon the failure of the jury or the court to so determine, the degree of
the crime or attempted crime of which the defendant is guilty, shall be deemed
to be of the lesser degree.” (§
1157.) “Theft is divided into two
degrees, the first of which is termed grand theft; the second, petty
theft.” (§ 486.) “[S]ection 952 states, in part: ‘In charging theft it shall be sufficient to
allege that the defendant unlawfully took the labor or property of
another.’ It is not required that the
charging document specify whether the alleged crime constitutes grand theft or
petty theft. (People v. Anderson
(1961) 55 Cal.2d 655, 657.)” (People v. Ortega (1998) 19 Cal.4th 686,
696-697 (Ortega).)

Analysis

The substantive charge in count 46
was grand theft. There was never a
suggestion in the trial court that, if defendants were guilty, the crime was
anything less than grand theft. The
defense position at trial was that defendants were not guilty; they did not
contend they were guilty of petty theft.

The trial court read the
information to the jury immediately prior to the opening statements of
counsel. The jury was told that count 46
alleged that defendants committed grand theft of money exceeding $400, in the
amount of $759,600, which was used to purchase Costa Rican parcels 5-85742,
5-29451, 5-34097, and 5-2962. As pled,
count 46 involved a charge that was unmistakably grand theft.

The jury convicted defendants of
the offense as charged. The verdict form
on count 46 stated that the jury found defendants “guilty of the crime of GRAND
THEFT OF PERSONAL PROPERTY, in violation of Penal Code Section 487(a), a
felony, as charged in Count 3 of the
Information.” (Italics added.) As charged in the information, defendants
committed grand theft of $759,600.

It is of no moment that the jury
found not true the two excessive taking special allegations alleged as to count
46. The allegation under section 186.11,
subdivision (a)(2)—that the taking resulted in a loss of more than $500,000—was
not applicable because this enhancement allegation requires commission of two
or more felonies, and defendants were only convicted of one felony. The excessive taking allegation under section
12022.6 was also inapplicable, because it alleged a cumulative loss greater
than $2.5 million. Here there was no
cumulative loss, and the amount of the theft in count 46 was far less than $2.5
million. There was no basis for the jury
to find true the second excessive taking allegation.

The trial court’s failure to
instruct on the $950 loss required for grand theft is harmless beyond a
reasonable doubt. (Neder v. United States (1999) 527 U.S. 1, 15-16; People v. Mil (2012) 53 Cal.4th 400,
413-414.) By finding defendants guilty
as charged, the jury necessarily found a taking far in excess of $950. (See People
v. Preciado (1991) 233 Cal.App.3d 1244, 1247-1248 [jury verdict finding
defendant guilty of residential burglary as charged in the information
sufficient to fix the offense as burglary in the first degree].) The essence of count 46 was that Michelson
would not have wired $759,600 to Powers for the purchase of the properties
identified in count 46 had he known defendants were engaged in a scheme to
misrepresent the costs and quality of the properties, with the intent of
converting substantial portions of Michelson’s investments to their own
use.

Defendants persistently argue on
appeal that the offense in count 46 could amount to no more than a petty theft
because Michelson did not ultimately suffer a loss on his investments. From this premise, they contend the jury did
not necessarily find a theft of $950 or more.
This is incorrect, because loss to the victim is not an element of theft
by trick or device. (People v. Traster (2003) 111 Cal.App.4th
1377, 1390 [“The elements of theft by trick and device are: ‘(1) the obtaining of the possession of the
property of another by some trick or device; (2) the intent by the person so
obtaining possession to convert it to his own use and to permanently deprive
the owner of it; and (3) that the owner, although parting with possession to
such person, does not intend to transfer his title to that person’”].)

We are satisfied that any error in
failing to instruct on the $950 loss required for grand theft was harmless
beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S.
18, 24.)

Reduction to a
Misdemeanor Pursuant to Proposition 47

Defendants next argue that pursuant
to the ameliorative provisions of Proposition 47, the conviction in count 46
must be reduced to a misdemeanor because there is no proof the value of the
property taken exceeded $950. (See §
490.2 [obtaining any property by theft where the value does not exceed $950
shall be treated as a misdemeanor].) We
reject the contention. As discussed in
the preceding section of this opinion, defendants took property by theft with a
value far in excess of $950. Section
490.2 has no application in this case.

Application of
Misdemeanor Statute of Limitations

Finally, defendants contend that
because, in their view, they were convicted of a misdemeanor, the one-year
statute of limitations applicable to misdemeanors applies, and the conviction
in count 46 is time-barred. We have
rejected the contentions that the conviction should be treated as a
misdemeanor. As a consequence, the
misdemeanor statute of limitations has no application.

Tuesday, April 5, 2016

January 22, 2016 Justice Richard Mosk left the bench for medical leave in this case right before they were about to release the opinion. Oral argument had already been done. They had to get another Justice then parties waived oral argument.

"01/22/2016Vacate submit date. The submission in this case is vacated due to the unavailability of Associate Justice Richard M. Mosk due to illness. The cause is placed on calendar for oral argument, if desired by the parties, on March 1, 2016, at 9:00 a.m."

Opinion should be released by May 2, 2016.

I assume Richard Mosk must really be very sick to take medical leave and then retire. I hope he just decided to retire when he was out ill. I hope he's okay.

LOS ANGELES—Associate Justice Richard M. Mosk of the Court of Appeal, Second Appellate District, Division Five (Los Angeles), will retire on March 31, 2016, after nearly 15 years on the bench.

In his March 18, 2016 letter to Governor Edmund G. Brown Jr., announcing his intent to retire, Associate Justice Mosk wrote, “It has been an honor and a privilege for me to serve as a Justice of this Court.”

Justice Mosk was appointed by Governor Gray Davis to the Court of Appeal in 2001, and was subsequently retained by vote of the people in 2002 and again in 2006. Before his appointment, he was in private practice in Los Angeles for 23 years as an associate, partner, and principal. During this time he also served as a Special Deputy Federal Public Defender, a judge and substitute judge on the Iran – U.S. Claims Tribunal, and as chair and co-chair of the Classification and Rating Administration of the Motion Picture Association of America.

Administrative Presiding Justice Roger Boren commented, “Justice Mosk was a very talented justice, with considerable experiences that made him a very interested and high energy judge. I was very fond of Richard. He often arrived early at the court—even after he became burdened with age—and we sometimes engaged in morning conversations on the topics of the day, which I shall personally miss.”

Justice Mosk was a member of staff to the President’s Commission on the Assassination of President Kennedy (Warren Commission), and a law clerk to Supreme Court of California Associate Justice Mathew O. Tobriner. He served on active duty in the air police unit of the California Air National Guard and as an officer in the United States Naval Reserve. Justice Mosk was a member of the Independent Commission on The Los Angeles Police Department (Christopher Commission), Los Angeles City-County Board of Inquiry on Brush Fires, Los Angeles Commission on Judicial Procedures, Board of Trustees of Los Angeles County Law Library, Board of Directors of the California Museum of Science and Industry, Board of Directors of Town Hall California, and Stanford Athletic Board. He has taught course and given lectures in law schools and universities in the United States and internationally, and has published numerous articles for law reviews and newspapers.

Justice Paul Turner, the presiding justice of Division Five of the Court of Appeal, Second Appellate District who served with Associate Justice Mosk for 15 years said, “This concludes nearly seven decades of service by the Mosk family as members of the judicial branch of government. No other California family has given so much of their lives in sustained service to people of California as members the California judiciary.”

Dr. Gary Karlin Michelson

Dr. Gary Karlin Michelson won a $1.35 billion dollar settlement from Medtronic in 2005 and became an over night billionaire in the Forbes 400 list. G Karlin Michelson files patents for spinal medical devices. His most famous patent the threaded spinal cage was actually invented by other people but he filed the patent first. He is considered by many to be a patent troll.

Gary Michelson started the Found Animals Foundation, 20 Million Minds and Michelson Medical Research Foundation. He also oversees Karlin Asset Management, Karlin Ventures, Karlin Real Estate and Karlin Opportunity Fund which are his own personal holding companies.

This blog is about his biography and history starting in Philadelphia up to today in Los Angeles, California. When Gary Michelson first won the $1.35B dollars he promised to donate all of the money to charity for useful causes such as helping animals, students and people with back problems. He started three foundations but has never fully funded them. He promised to make Los Angeles a No Kill city for animals in 2005 but failed. He promised to give students free books but didn't keep that promise either. Instead Gary Michelson uses his money to wage vicious wars against people to satisfy personal vendettas.

This blog explores his many lawsuits, failed business dealings, his own personal failings and his wife Alya aka Alevtina "Gold" Michelson, stage name Tina Gold and T'n'G. Her real name is Alevtina Shchepetina, Алевтина Щепетина in Russian. She claims to be Russia's first test tube baby and a Kremlin correspondent. These things are not true. Alya was a "model/singer" in Russia. Most read that to mean "Russian mail order bride" or in Gary's case "beard." It was stated in written legal documents that Gary Michelson is a homosexual. That document is included in this blog.

I've known Gary Michelson since 2005. I worked for him in 2006. I am very familiar with the topics which I am posting about here.

Gary Michelson, his partners, wife are public figures. The items in this blog are of public interest. The images are used under the Fair Use of Copyright for non-profit comment and education. Everything in this blog is the truth to the best of my knowledge. If you see a mistake, please, contact me with proof so I can edit or delete it. I generally post links to back up all of the statements I make so you can review the documents and come to your own conclusion. Everything else in the blog is my personal opinion and belief. Nothing in this blog is confidential. Everything is public information. The purpose of this blog is to share this public information about public people involved in a very public criminal and civil litigation.